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Problems And Tasks Of Legal Regulation Of Interstate Electric Energy Transmission
 
PIIS231243500021946-8-1
DOI10.18572/2410-4396-2018-1-63-69
Publication type Article
Status Published
Authors
Andrey V. Smagin 
Occupation: Head of the Directorate of Regulatory Affairs of Federal Grid Company
Affiliation: Unified Energy System, PJSC
Address: Russian Federation
Journal nameEnergy law forum
EditionIssue 1
Pages63-69
Abstract

Interstate transmission of electric energy (capacity) (hereinafter referred to as the IST) is one of the fundamental elements for creation of the common electric power market of the Eurasian Economic Union. The concept of the IST in the form in which it is specified in the Treaty on the EAEU is not known to the legislation of foreign coun- tries and is collective as in case of implementation of the IST in the form of substitution, interrelations of the parties complicated by a foreign element will be based on counter contracts for purchase and sale of electricity and capacity of the same volume at different supply points. At the same time, substitution is the only way to implement the IST in the Russian Federation due to a number of factors. First, it is the length of the Russian Federation and the UNPG (territo- rial distribution). Second, it is the structure of the UES of Russia, that is, although the UES of Russia generally operates in parallel with the electric power systems of foreign states (the Republics of Belarus and Kazakhstan), the electric power systems of these states are connected to specific integrated energy systems (hereinafter referred to as the IES), of which the UES of Russia consists, and in which, as a rule, electricity (capacity) is produced and consumed. Third, it is the discrepancy between the price areas established by the Wholesale Electricity and Capacity Market Rules approved by Resolution No. 1172 of the Government of the Russian Federation dd. December 27, 2010 upon implementation of the IST across the territory of the Russian Federation and, as a result, the mismatch of electricity prices in these price areas. Taking into account the above-mentioned factors, it is currently impossible to talk about the technical and eco- nomic possibility of movement (transit) across the territory of the Russian Federation of electricity (capacity) upon implementation of the IST within the EAEU.

Keywordselectric power system, common electric power market of the Eurasian Economic Union, interstate elec- tricity (capacity) transmission
Received06.02.2018
Publication date30.03.2018
Number of characters25802
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1 For the first time, the concept of “interstate transmission of electricity (capacity)” was specified in the Intergovernmental Agreement dd. November 19, 2010 “On Ensuring Access to Services of Natural Monopolies in the Electric Power Industry Including Fundamentals of the Pricing and Tariff Policy” concluded between the Government of the Republic of Belarus, the Government of the Republic of Kazakhstan, and the Government of the Russian Federation.
2 The above-mentioned Intergovernmental Agreement became null and void from the effective date of the Treaty on the EAEU — from January 1, 2015.
3 The protocol on ensuring access to services of natural monopoly entities in the electric power industry including the fundamentals of the pricing and tariff policy which forms Annex No. 21 to the Treaty on the EAEU (hereinafter referred to as the Protocol on Ensuring Access to Services of the NME) currently defines “interstate transmission of electricity (capacity)”, which is referred to the provision of services by authorized organizations of the member states for movement and/or substitution of electricity (capacity). Depending on the peculiarities of the national laws, the relevant relations are formalized by service contracts for transfer (transit) or other civil law contracts including contracts for purchase and sale of electricity (capacity).
4 In the Protocol on Ensuring Access to Services of the NME, the movement of electricity (capacity) is understood as ensuring flows of electricity (capacity) produced in the territory of the member state through the grids of another member state between supply points located on its border(s).
5 The flow of electricity (capacity) is understood as the transport of electricity (capacity) through one or several transmission lines in a controlled section (the Agreement on Ensuring Parallel Operation of Electric Power Systems of the Member States of the Commonwealth of Independent States dd. November 25, 1998).
6 Movement of electric energy as a variant of the IST needs to be distinguished from the contract for cross flow that existed in the Soviet era. Thus, B.M. Seynaroev noted that the legal form determining relations between electric power systems for transmission of electric energy from one energy system to another is a contract for cross flow of electricity. Under the contract for cross flow, one energy system undertakes to sell electricity to the other, and the latter undertakes to pay for the received amount of energy at a price provided for by the contract and approved in accordance with the established manner. The subject matter of the specified contract is electric energy [1]. In its turn, the IST in the form of movement may be qualified as a kind of onerous service contract, the subject matter of which is transmission of electricity across the territory of a neighboring state.
7 The Protocol on Ensuring Access to Services of the NME distinguishes the following types (routes) of the IST: (1) Transmission of electricity(capacity) from one part of the electric power system of the member state to its other part through the electric power system of a neighboring member state; (2) Movement of electricity (capacity) through the electric power system of the member state from the electric power system of one member state to the electric power system of another member state; (3) Movement of electricity (capacity) through the electric power system of the member state in order to fulfill obligations with respect to the subjects of the electric power industry of third countries.
8 The analysis of the provisions of the Protocol on Ensuring Access to Services of the NME and the Agreement on Transit of Electricity and Capacity of the CIS Member States shows that the concept of “movement of electricity (capacity)” is similar to the concept of “transit of electricity (capacity)” as provided for in the Agreement on Transit of Electricity and Capacity of the CIS Member States.
9 In the above Agreement, the transit of electricity and capacity means: (1) Transmission across the territory of the party through its power grids of electricity and capacity produced in the territory of another state and intended for the territory of a third state, provided that either the other or the third state is a party to the said agreement; (2) Transmission of electricity and capacity between two points of one party across the territory of the other party through its power grids.
10 According to Article 3 of the Agreement on Transit of Electricity and Capacity of the CIS Member States, electricity and capacity is transited on the basis of agreements (contracts) concluded by the business entities of the Parties, regardless of the form of ownership and departmental affiliation.
11 The Civil Code of the Russian Federation and the Federal Law “On the Electric Power Industry” do not contain the term “transit of electricity and capacity” and do not distinguish an independent agreement — the agreement on transit of electricity and capacity. However, absence of this term in the specified legislative acts does not mean that it refers to a contract not specified in the civil law, but not conflicting with it (paragraph 2, Article 421 of the Civil Code of the Russian Federation). According to the author, the agreement on transit of electricity and capacity is a variant of the contract for provision of services for electricity and capacity transmission.

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